[Redacted], Carl Y., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Nov 10, 2021

Appeal No. 2021003677 (E.E.O.C. Nov. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carl Y.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 2021003677 Agency No. 200H-0373-2020102335 DECISION On June 12, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 12, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Rating Veterans Service Representative, GS-12, at the Agency’s Veterans Affairs Regional Office in Manchester, New Hampshire. On March 1, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability (Irritable Bowel Syndrome - IBS) and in reprisal for prior protected EEO activity when, on January 8, 2020, the Acting Regional Service Center Director denied Complainant’s request for reasonable accommodation to increase his telework days from four (4) days to five (5) days per week, with the stipulation that the accommodation would be reviewed every six months. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2021003677 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Reasonable Accommodation A federal agency must make reasonable accommodation to the known physical or mental limitations of a qualified employee with a disability unless the agency can demonstrate that the accommodation would impose an undue burden on the operation of its program. 29 C.F.R. § 1614.203(c)(1). A qualified employee with a disability is one who can perform the essential functions of the position in question with or without reasonable accommodation. 29 C.F.R. § 1614.203(a)(6). Here, we will assume, for purposes of analysis only, that Complainant is an individual with a disability due to his diagnosis of Irritable Bowel Syndrome. There is also no dispute that Complainant was qualified for his position. The record reflects that, at the time this matter arose, Complainant already had an approved reasonable accommodation from the Agency of four days of telework per week. Complainant requested to go from four days to five days of telework per week. In support of this request, however, Complainant submitted the same medical documentation that he submitted for his original reasonable accommodation request in 2015. On appeal, Complainant states that he also submitted a current note from his treating physician. The Agency’s Reasonable Accommodation Centralized Program (RACP) handled Complainant’s request. When Complainant made his most recent request, the first-level designated management official (DMO1) testified that he told Complainant that the medical documentation from his original reasonable accommodation request substantiated the original request that resulted in the four days per week of telework. DMO1 also stated that he told Complainant that there would need to be updated medical documentation that demonstrated the need for the fifth day of telework per week. Complainant appealed to the second-level DMO (DMO2), who similarly stated that Complainant had not submitted evidence to demonstrate the need for an expanded reasonable accommodation of five days per week of telework. The record indicates that the Agency continued four days per week of telework, along with a desk near a restroom and the ability to take frequent breaks. Additionally, the Agency stated that its RACP policy was to review reasonable accommodations periodically, in six to 12-month intervals. 3 2021003677 The Commission has held that the reasonable accommodation process is an interactive one and that a complainant is not necessarily entitled to the specific accommodation he requests as long as an alternative accommodation is effective. See Castaneda v. U.S. Postal Service, EEOC Request No. 01931005 (February 7, 1994). The record reflects that the Agency engaged in the interactive process to determine an appropriate reasonable accommodation for Complainant. Both DMO1 and DMO2 advised Complainant that, to have an expanded reasonable accommodation from four days per week to five days per week, he would need to demonstrate that his condition required the expansion of his reasonable accommodation. The DMOs suggested that Complainant submit updated medical documentation to support that request, and not just the documentation he submitted back in 2015. Each time Complainant was advised of the need for updated medical documentation, he insisted that what he submitted was sufficient. Complainant, however, concedes on appeal that he used the original documentation from his 2015 reasonable accommodation request. He did not establish that he submitted documentation justify the need to increase his telework to five days per week. In sum, we conclude that the evidence of record does not support Complainant’s claim that he was denied reasonable accommodation by the Agency in violation of the Rehabilitation Act. Reprisal A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant now alleges that in retaliation for submitting his accommodation request to increase his telework to five days per week, management told him that his accommodation would be reviewed every six months. However, Complainant has not demonstrated by a preponderance of the evidence that the Agency’s articulated legitimate, nondiscriminatory rationale for informing Complainant that it would review his reasonable accommodation request every six months was a pretext for discriminatory animus on the basis of reprisal. As stated above, it was the Agency’s RAPC’s policy to review reasonable accommodations periodically. 4 2021003677 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 5 2021003677 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 10, 2021 Date